IN THE HIGH COURT OF SINDH, CIRCUIT COURT
LARKANA
Crl. Bail Appln. No. S- 668 of 2023.
Applicants: Najamuddin, Muhammad Sadique and Rahim Bux, through Mr. Habibullah G. Ghouri, Advocate.
Complainant: Sanaullah, through Mr. Azhar Hussain Abbasi, Advocate.
Respondent: The State, Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of hearing: 29.02.2024.
Date of order: 29.02.2024.
ORDER
Muhammad Saleem Jessar, J: Through this bail application, applicants Najamuddin, Muhammad Sadique and Rahim Bux seek their admission to post-arrest bail in Crime No.66 of 2023 registered with P.S Naperkot for offences punishable under Sections 302, 337-H (2), 504, 148 and 149 P.P.C., after rejection of their bail plea by learned Court below vide order dated 14.10.2023.
2. As per prosecution case, the allegation against present applicants is that on 05.09.2023, they along with other co-accused came at the scene of alleged offence and co-accused Muhammad Bachal, Muhammad Hussain and Muhammad Panah committed qatl-e-amd of Naeemullah by causing hatchet blow injuries. The role assigned to present applicants is that of making aerial firing while leaving the scene of offence. The motive for the alleged incident as set-out in the F.I.R is previous enmity between the parties over matrimonial affairs.
3. Learned counsel for the applicants mainly contended that no any active role of causing firearm injury to deceased is assigned to applicants except only aerial firing. Per learned counsel, in these circumstances, particularly in view of previous ill-will between the parties, the question of sharing common intention vicarious liability of present applicants with principal co-accused would be determined at the time of trial. Lastly, he prayed for grant of bail to applicants.
4. Conversely, learned D.P.G. assisted by learned Advocate for complainant opposed the bail application on the grounds that the applicants have been nominated in the F.I.R with role of making aerial firing, as such the applicants are vicariously liable for the alleged offence and that there is recovery of crime weapons from applicant and empties from crime scene and FSL report is in positive. They further added, that the offence with which the applicants are charged is heinous one carrying capital punishment and falls within prohibitory clause of Section 497 Cr.P.C.
5. Heard learned counsel for the respective parties and perused the material available on record.
6. It is matter of the record that, though the applicants have been nominated in the F.I.R, but no active role of making any fire upon any of the member of complainant party including the deceased is assigned to them. The applicants were allegedly armed with guns at the time of incident, but it is not alleged against them that they used the guns effectively in the commission of offence. Those were other co-accused, who are alleged to have inflicted hatchet blows to deceased. As such, question of sharing common intention and vicarious liability of the applicants with principal accused would be determined at trial. The case has already been challaned and physical custody of the applicants is no more required to police for the purpose of investigation. In these circumstances continuous custody of the applicants in jail is not likely to serve any beneficial purpose at this juncture.
7. A tentative assessment of all the above factors and the material available on record, the case of applicants falls within purview of further enquiry in terms of subsection (2) of Section 497 Cr.P.C., entitling them to grant of discretionary relief of bail to them. Accordingly, the instant bail application stands allowed. Applicants Najamuddin, Muhammad Sadique and Rahim Bux are admitted to bail upon their furnishing solvent surety in the sum of Rs.100,000/- (One hundred thousand rupees) each and P.R bonds in the like amount to the satisfaction of trial Court.
8. Before parting with this order, it is made clear that, observations made herein above are tentative in nature and would not prejudice case of either party at trial.
Judge
Ansari